Citation Nr: 0210330
Decision Date: 08/22/02 Archive Date: 08/29/02
DOCKET NO. 98-06 793 ) DATE
)
)
Received from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for sinus condition,
headaches, hair loss, low blood count, and fatigue, to
include as secondary to an undiagnosed illness.
2. Entitlement to an increased disability evaluation for a
right knee disability effective prior to August 4, 1999,
evaluated as 10 percent disabling.
3. Entitlement to an increased disability evaluation for a
right knee disability effective as of August 4, 1999, but
prior to April 1, 2001, evaluated as 20 percent disabling.
(Entitlement to an increased disability evaluation for a
right knee disability effective as of April 1, 2001,
currently evaluated as 30 percent disabling, will be
addressed in a separate decision.)
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Trueba-Sessing, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1989 to July
1992.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Department of Veterans
Affairs (VA) Regional Offices . In an August 1995 decision,
the Nashville, Tennessee, Regional Office, denied the
veteran's claims of entitlement to service connection for a
sinus condition, headaches, hair loss, low blood count, and
fatigue, to include as secondary to an undiagnosed illness.
In an August 1997 decision, the Montgomery, Alabama, Regional
Office (RO), denied a claim seeking entitlement to an
increased (compensable) disability rating for a service-
connected right knee disorder, status post partial and medial
meniscectomy. At present, the claims are before the Board
for appellate review.
Pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104
(Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)),
the Board is undertaking additional development on the issue
of entitlement to an increased disability evaluation for a
right knee disability effective as of April 1, 2001,
currently evaluated as 30 percent disabling. When the Board
completes this development, it will notify the veteran as
required by Rule of Practice 903. 67 Fed. Reg. 3,099, 3,105
(Jan. 23, 2002) (to be codified at 38 C.F.R. § 20.903).
After giving the notice and reviewing the response to the
notice, the Board will prepare a separate decision addressing
this issue.
FINDINGS OF FACT
1. An August 1995 rating decision denied entitlement to
service connection for sinus condition, headaches, hair loss,
low blood count, and fatigue.
2. In March 1996, the veteran filed a timely notice of
disagreement.
3. Pursuant to the Board's request in a June 1999 remand, in
July 1999, the RO issued a statement of the case addressing
the claims of service connection for sinus condition,
headaches, hair loss, low blood count, and fatigue. The
veteran was notified of the need to perfect his appeal via
the statement of the case.
4. A substantive appeal as to the claims of service
connection for sinus condition, headaches, hair loss, low
blood count, and fatigue was not timely filed.
5. In an April 8, 2002 letter, the Board notified the
veteran that it was raising the issue of the timeliness of
his substantive appeal regarding the issues of entitlement to
service connection for sinus condition, headaches, hair loss,
low blood count, and fatigue. He was given 60 days to
present a written argument, submit additional evidence
relevant to jurisdiction or to request a hearing.
6. No additional argument or response to the April 8, 2002
Board letter has been submitted by the veteran.
7. The VA has fulfilled its duty to assist the veteran by
obtaining and fully developing all relevant evidence
necessary for the equitable disposition of the appeal
regarding the issues of increased disability evaluations.
8. Prior to August 4, 1999, the veteran's right knee
disability was characterized by subjective complaints of
pain, swelling, knee popping and catching upon active motion;
right knee range of motion was from 0-5 degrees of extension
to 120-130 degrees of flexion and no evidence of frequent
episodes of locking and effusion into the joint, flexion
limited to 30 degrees, or extension limited to 15 degrees.
9. As of August 4, 1999, but prior to April 1, 2001, the
veteran's right knee disability was characterized by evidence
of painful motion, some guarding on movement, instability and
slight laxity.
10. X-ray and Magnetic Resonance Imaging (MRI) evidence
demonstrates right knee degenerative joint disease.
CONCLUSIONS OF LAW
1. As there is no timely filed substantive appeal, the Board
lacks jurisdiction to review the veteran's claims of
entitlement to service connection for sinus condition,
headaches, hair loss, low blood count, and fatigue. 38
U.S.C.A. §§ 5103A, 7104, 7105, 7108 (West 1991 & Supp. 2001);
38 C.F.R. 20.101, 20.200, 20.202, 20.302 (2001).
2. The criteria for an increased disability evaluation in
excess of 10 percent for a right knee disability effective
prior to August 4, 1999 have not been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38
C.F.R.
§§ 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Codes 5258,
5259, 5260, 5261 (2001).
3. The criteria for an increased disability evaluation in
excess of 20 percent for a right knee disability effective as
of August 4, 1999, but prior to April 1, 2001 have not been
met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 1991 &
Supp. 2001); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.41-4.42, 4.71a,
Diagnostic Code 5257 (2001).
4. The criteria for a separate 10 percent disability
evaluation for arthritis of the right knee effective as of
August 4, 1999, but prior to April 1, 2001 have been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 1991 & Supp. 2001);
38 C.F.R.
§§ 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Codes 5003,
5010, 5260, 5261 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for Sinus Condition, Headaches,
Hair Loss, Low Blood Count, and Fatigue.
With regard to the claims of service connection for sinus
condition, headaches, hair loss, low blood count, and
fatigue, the initial question that must be resolved is
whether the Board has jurisdiction to consider the issue. 38
U.S.C.A. § 7104. Specifically, it must be determined whether
the veteran filed a timely substantive appeal with regard to
his claims.
An appeal consists of a timely filed notice of disagreement
in writing and, after a statement of the case has been
provided, a timely filed Substantive Appeal. 38 U.S.C.A. §
7105; 38 C.F.R. § 20.200 (2001). A substantive appeal
consists of a properly completed VA Form 9 "Appeal to the
Board of Veterans' Appeals," or correspondence containing
the necessary information. Proper completion and filing of a
Substantive Appeal are the last actions the appellant needs
to take to perfect an appeal. 38 C.F.R. § 20.202 (2001).
To be considered timely, the Substantive Appeal must be filed
within 60 days from the date the agency of original
jurisdiction mails the SOC to the appellant, or within the
remainder of the one-year period from the date of mailing of
the notification of the determination being appealed, or
within the extended time limits prescribed pursuant to a
timely filed request for extension of time, whichever is
later. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.302(b) (2001).
If the claimant fails to file a Substantive Appeal in a
timely manner, he is statutorily barred from appealing the RO
decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993).
In this case, the issues of entitlement to service connection
for sinus condition, headaches, hair loss, low blood count,
and fatigue were first denied by the Nashville, Tennessee
Regional Office in an August 1995 rating decision.
Subsequently, pursuant to the Board's request in a June 1999
remand, on July 9, 1999, the RO issued a statement of the
case addressing the claims of service connection for sinus
condition, headaches, hair loss, low blood count, and
fatigue. The veteran was notified of the need to perfect his
appeal via the statement of the case. The July 1999
statement of the case informed the appellant that he had to
file his appeal with that office within 60 days from the date
of that letter or within the remainder, if any, of the one-
year period from the date of the letter notifying him of the
action that he had appealed. However, the veteran's VA Form
9 (substantive appeal) was received at the RO on March 16,
2000, which is at least 6 months pass the 60-day period
(ending on September 7, 1999) allowed in the statement of the
case. As well, the VA Form 9 was received more than 3 years
pass the allowed one-year period from the August 1995 initial
denial, which ended August 1996. No additional VA forms 9 or
other statements were received from the veteran or his
representative prior to September 7, 1999.
In a letter dated April 8, 2002, the Board notified the
veteran that his substantive appeal may not have been filed
in a timely manner with respect to the claims of service
connection for sinus condition, headaches, hair loss, low
blood count, and fatigue. The Board gave the appellant the
opportunity to submit additional argument or evidence in
regard to this matter, and to request a hearing on the issue.
However, to the present, the veteran or his representative
have neither responded to the April 2002 Board letter nor
submitted any related additional arguments/evidence.
Upon a review of the claims file, the Board finds that the
veteran failed to timely perfect an appeal with respect to
the issues of entitlement to service connection for sinus
condition, headaches, hair loss, low blood count, and
fatigue. As well, the Board finds that the veteran did not
submit a written statement contending that good cause existed
warranting an extension of the 60-day time period for filing
a substantive appeal prior to the expiration of that time
limit. See 38 U.S.C.A. 7105(d)(3) (West 1991); 38 C.F.R.
20.303 (2001). As such, the Board does not have jurisdiction
to review the veteran's claims, and the claims must be
dismissed for failure to file a timely substantive appeal.
The Board is aware that although it has the obligation to
assess its jurisdiction, it must consider whether doing so in
the first instance is prejudicial to the appellant.
VAOPGCPREC 9-99, 64 Fed. Reg. 52,376 (1999). In this case,
the veteran was informed of the Board's intent to consider
the jurisdictional question in the April 8, 2002
correspondence discussed above. As such, the Board finds
that the veteran was afforded appropriate procedural
protections to assure adequate notice and a chance to be
heard on that aspect of the claims.
Lastly, in arriving at its conclusion, the Board considered
the applicability of the Veterans Claims Assistance Act of
2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (VCAA),
which was signed into law during the pendency of this appeal.
This liberalizing law is applicable to the veteran's appeal.
See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To
implement the provisions of the law, VA promulgated
regulations published at 66 Fed. Reg. 45, 620 (Aug. 29, 2001)
(to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a)). The Board notes, however, that although the
recent change in the law fundamentally changes the nature of
VA's duty to inform and assist claimants with their claims,
the VCAA did not modify or change the statutory standards
governing the Board's jurisdiction. As such, the VCAA has no
application to the facts of this case.
II. Increased Disability Evaluations for a Right Knee
Disability.
As previously indicated, on November 9, 2000, the President
signed into law the VCAA. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West Supp. 2001). In substance, the
VCAA provides that VA shall make reasonable efforts to assist
a claimant in obtaining evidence necessary to substantiate
his or her claim for benefits under the laws administered by
VA. In pertinent part, this law redefines the obligations of
VA with respect to the duty to assist. The provisions of the
VCAA apply to all claims for VA benefits, to include claims
involving entitlement to increased ratings.
VA issued regulations to implement the VCAA in August 2001.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a)). The amendments became effective on November 9,
2000, except for the amendment to 38 C.F.R. § 3.156(a), which
became effective August 29, 2001. Except for the amendment
to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R.
§ 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that
"the provisions of this rule merely implement the VCAA, and
do not provide any rights other than those provided in the
VCAA." 66 Fed. Reg. 45,629. Accordingly, where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions are likewise satisfied.
Pursuant to the VCAA, VA first has a duty to notify the
veteran and his representative of any information and
evidence necessary to substantiate his claim for VA benefits.
See generally 38 U.S.C.A. §§ 5102, 5103 (West Supp. 2001);
66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified
as amended at 38 C.F.R. § 3.159(b)). Further, the VA has a
duty to assist the veteran in obtaining evidence necessary to
substantiate his claim, although the ultimate responsibility
for furnishing evidence rests with the veteran. See
38 U.S.C.A. § 5103A (West Supp. 2001); 66 Fed. Reg. 46,620,
45,630 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. § 3.159(c)).
In the present case, the Board finds that VA's redefined duty
to assist as set forth in the VCAA has been fulfilled
regarding the issues addressed in this decision. The Board
finds that the veteran has been provided adequate notice as
to the evidence needed to substantiate his claims for
increased ratings for a right knee disability. In the
February 1998 statement of the case, and in the October 1998,
February 2000, September 2000, and August 2001 supplemental
statements of the case, the RO informed the veteran of the
type of evidence that would be needed to substantiate his
claims. The Board finds, therefore, that such documents are
essentially in compliance with VA's revised notice
requirements. Accordingly, the Board finds that VA does not
have any further outstanding duty to inform the veteran that
any additional information or evidence is needed.
Upon reviewing the veteran's claims file, the Board finds
that all relevant facts have been properly developed, and
that all evidence necessary for an equitable resolution of
the issues addressed in this decision has been identified and
obtained. The RO has afforded the veteran comprehensive VA
examinations in August 1999 and May 2001, and has obtained
all noted records of medical treatment for the disorder at
issue. The veteran was also afforded the opportunity to
testify during an appeal hearing at the RO in November 2000.
The Board is not aware of any additional relevant evidence
which is available in connection with this appeal, and
concludes that all reasonable efforts have been made by VA to
obtain the evidence necessary to substantiate the veteran's
claims. Therefore, the Board concludes that no further
assistance to the veteran regarding development of evidence
is required, and would be otherwise unproductive. See
generally VCAA; McKnight v. Gober, 131 F.3d 1483 (Fed. Cir.
1997).
Disability evaluations are determined by evaluating the
extent to which the veteran's service-connected disabilities
affect his ability to function under the ordinary conditions
of daily life, including employment, by comparing his
symptomatology with the criteria set forth in the Schedule
for Rating Disabilities (Rating Schedule). See 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2001).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. See 38 C.F.R. § 4.7 (2001).
With respect to the musculoskeletal system, the United States
Court of Appeals for Veterans Claims (Court) has emphasized
that when assigning a disability rating, it is necessary to
consider functional loss due to flare-ups, fatigability,
incoordination, and pain on movement. See DeLuca v. Brown, 8
Vet. App. 202, 206-7 (1995); see generally VAOPGCPREC 36-97.
The rating for an orthopedic disorder should reflect
functional limitation which is due to pain, supported by
adequate pathology, and evidenced by the visible behavior of
the claimant undertaking the motion. Weakness is also as
important as limitation of motion, and a part which becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity, or
the like. See 38 C.F.R. § 4.40 (2001). The factors of
disability reside in reductions of their normal excursion of
movements in different planes. Instability of station,
disturbance of locomotion, and interference with sitting,
standing, and weight bearing are related considerations. See
38 C.F.R. § 4.45 (2001). It is the intention of the Rating
Schedule to recognize actually painful, unstable, or
malaligned joints, due to healed injury, as entitled to at
least the minimal compensable rating for the joint. See 38
C.F.R. § 4.59 (2001).
In this case, in an August 1992 rating decision, the veteran
was awarded service connection for status post partial and
medial meniscectomy, postoperative right knee, and was
assigned a noncompensable evaluation under Diagnostic Code
5259, effective July 11, 1992. In an October 1998 rating,
his disability evaluation was increased to a 10 percent
rating effective April 20, 1998, under Diagnostic Code 5259.
Following the June 1999 Board's remand for additional
development, in a February 2000 rating decision, the
veteran's award was recharacterized as status post partial
and medial meniscectomy of the right knee, status post
revision of the anterior cruciate ligament (ACL) and
debridement of the medial meniscus. The veteran's award was
increased to a 20 percent evaluation, under Diagnostic Code
5257, effective August 4, 1999. And, in an August 2001
rating decision, the veteran's award was again increased to a
30 percent rating, under Diagnostic Code 5257, effective
April 1, 2001. Since July 1992 to the present, the veteran
has been awarded a total disability evaluation based on
convalescence under 38 C.F.R. 4.30 for various periods of
convalescence due to surgeries for his right knee disability.
A. Effective Prior to August 4, 1999,
Evaluated as 10 Percent Disabling.
The medical evidence includes a November 1994 VA examination
report showing no evidence of swelling, tenderness or
impaired range of motion of any major joint. Additionally,
the evidence includes records from a VA medical Center (VAMC)
dated from 1994 to 2001. These records include various
notations dated in April 1996 showing the veteran underwent a
right knee bone-tendon-bone graft with no significant
patellofemoral and mediolateral joint line degenerative joint
disease. Right ACL deficiency was noted, with no discomfort
but a range of motion of 0 to 30 degrees. However, only a
few months later, May 1996 x-rays showed ACL repair with
intact joint spaces and August 1996 notations show right knee
with full extension and flexion to 120 degrees (full flexion
being 140 degrees).
November 1996 notations indicate the veteran complained of
right knee pain and swelling. And, August 1998 notations
show additional complaints of right knee popping, swelling
and catching upon active motion. Status post ACL
reconstruction with no improvement was noted. The veteran's
right knee had 1+ Lachman with a range of motion from 5 to
130. He was diagnosed with right knee derangement.
The VAMC medical records also include September 1998
notations which show that, due to the diagnosed internal
derangement, the veteran underwent a right knee arthroscopy
with partial lateral meniscectomy. His postoperative
diagnosis was posterolateral bucket handle meniscal tear and
laxity of ACL graft. However, October 1998 notations show
the veteran's range of motion was 0 to 130 degrees, although
with 2+ drawer and Lachman signs, but with no laxity or pivot
shift.
As discussed above, in an August 1992 rating decision, the
veteran was awarded service connection for status post
partial and medial meniscectomy, postoperative right knee,
and was assigned a noncompensable evaluation under Diagnostic
Code 5259, effective July 11, 1992. Subsequently, in an
October 1998 rating, his disability evaluation was increased
to a 10 percent rating effective April 20, 1998 under
Diagnostic Code 5259.
Under Diagnostic Code 5259, a 10 percent rating, which is the
maximum allowed, is assigned for symptomatic postoperative
residuals of removal of semilunar cartilage. See 38 C.F.R.
4.71a, Diagnostic Code 5259 (2001). Other potentially
applicable diagnostic Codes are 5258, 5260 and 5261. See
Butts v. Brown, 5 Vet. App. 532 (1993) (implicitly holding
that the BVA's selection of a Diagnostic Code may not be set
aside as "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law," if relevant data is
examined and a reasonable basis exists for its selection)
(Citations omitted).
Under Diagnostic Code 5258, a 20 percent disability
evaluation is warranted where there is evidence of
dislocation of the semilunar cartilage with frequent episodes
of "locking," pain, and effusion into the joint. See 38
C.F.R. § 4.71a, Diagnostic Code (DC) 5258. In this case, the
evidence shows subjective complaints of pain, swelling, knee
popping and catching upon active motion, as well as a right
knee arthroscopy with partial lateral meniscectomy in
September 1998 due to internal derangement. However, the
evidence does not specifically indicate that the veteran's
symptomatology included frequent episodes of locking, pain
and effusion into the joint. As a matter of fact, as of
October 1998, the veteran's range of motion was 0 to 130
degrees, although with 2+ drawer and Lachman signs, but with
no laxity or pivot shift. As such, an increased rating in
excess of 10 percent for a right knee disability effective
prior to August 4, 1999 is not warranted under Diagnostic
Code 5258.
Additionally, given that the veteran's right knee range of
motion was from 0-5 of extension to 120-130 of flexion, even
when considering the complaints of pain in relation to
functional loss, it is clear that the veteran's right knee
disability cannot be equated with the criteria for an
increased (20 percent) rating under either Diagnostic Code
5260 (requiring flexion limited to 30 degrees for an
increased rating) or Diagnostic Code 5261 (requiring
extension limited to 15 degrees for an increased rating).
After careful review of the medical evidence, the Board
concludes that the veteran's 10 percent evaluation, effective
prior to August 4, 1999, under Diagnostic Code 5259, fully
contemplates the level of his service connected right knee
disability. As 10 percent is the maximum rating allowed
under Diagnostic Code 5259, an increased rating in excess of
10 percent is not available to the veteran under this
Diagnostic Code 5259. And, as described above, an increased
rating in excess of 10 percent is not warranted under
Diagnostic Codes 5258, 5260 and 5261. 38 C.F.R.
§ 4.71a, Diagnostic Codes 5258, 5259, 5260, 5261 (2001).
In arriving at this conclusion, the Board has considered the
effect of pain in rating the veteran's service connected
right knee disability. Although the Board is required to
consider the effect of pain when making a rating
determination, which has been done in this case, it is
important to emphasize that the rating schedule does not
provide a separate rating for pain. See Spurgeon v. Brown,
10 Vet. App. 194 (1997). From a functional point of view, it
is clear that the complaints of pain are not reflective of a
higher rating. As noted, prior to August 4, 1999, the
veteran's right knee range of motion was from 0-5 of
extension to 120-130. In other words, the pain complaints
are not supported by adequate pathology, as required under
§§ 4.40, 4.45 ,4.59, to warrant a higher than 10 percent
rating.
Lastly, the Board acknowledges that April 1996 VA medical
notations showed mediolateral joint line degenerative joint
disease. However, only a few months later, May 1996 x-rays
show ACL repair with intact joint spaces and August 1996
notations show right knee with full extension and flexion to
120 degrees (full flexion being 140 degrees). Even assuming
that the veteran's right knee had degenerative joint disease
for the entire period prior to August 4, 1999, the Board
finds that the veteran may not receive an additional 10
percent rating under Diagnostic Code 5003 or 5010, which
gives a 10 percent rating for noncompensable limitation of
motion when arthritis is established by X-ray findings.
Diagnostic Code 5259, which is the Diagnostic Code under
which the veteran is evaluated prior to August 1999,
contemplates symptoms such as limitation of motion. See
VAOPGCPREC 9-98 (August 14, 1998). And thus, a separate 10
percent rating for noncompensable limitation of motion would
violate the rule against pyramiding. 38 C.F.R. § 4.14.
B. Effective as of August 4, 1999, but Prior to April 1,
2001,
Evaluated as 20 percent disabling.
An August 1999 VA examination report shows the veteran
presented objective evidence of painful motion, instability
and some guarding on movement. However, there was no edema,
effusion, weakness, tenderness, redness, heat or abnormal
movement. His gait was good with a light limp. At this
time, he did not have an usual shoe pattern and did not use a
cane, but wore a Don Joy extension brace. His range of
motion was extension limited to 5 degrees (0 degrees being
full extension), and flexion limited to 108 (140 degrees
being full flexion). The veteran's diagnosis was post
surgery times two, degenerative joint disease of the right
knee involving a torn cartilage and ACL tear with loss of
function due to pain. X-ray evidence supports the diagnosis
by showing mild narrowing of the lateral compartment of the
right knee with history of ACL repair.
A private MRI report dated in March 2000, shows a diagnosis
of status post ACL reconstruction with evidence of disruption
of the ACL graft, moderate joint effusion, tears of the
posterior horn of both menisci, and postoperative changes
involving the patellar tendon.
Additionally, VAMC records show that, in December 2000, the
veteran underwent right knee surgery once again. At this
time, he underwent a revision of the right ACL reconstruction
using an allograft of bone-patella-tendon-bone, and
debridement of the medial meniscus. His pre-operative
diagnosis was failed right ACL reconstruction, and his
postoperative diagnosis was failed right ACL reconstruction,
with degenerative meniscal tears on the medial side.
Lastly, January 2001 VAMC notations show the veteran had a
right knee range of motion of 5 to 130 degrees with no
appreciable effusion. He was deemed to have excellent
patellar mobility and "rock solid" Lachman without any
shift, although with anterior drawer slightly lax with a 3
millimeter of more anterior shift than the contralateral
side. X-rays revealed a Kurosaka screw in the tibia and a
bone block without opaque fixation of the femur. The
examiner further noted that the veteran had a significant
degenerative knee as evidenced by the prior arthroscopy.
The relevant Diagnostic Code 5257 provides the following
evaluations for knee disabilities involving recurrent
subluxation or lateral instability: 10 percent for slight; 20
percent for moderate; and 30 percent (the maximum allowed)
for severe impairment. See 38 C.F.R. § 4.71a, Diagnostic
Code 5257 (2001). Since Diagnostic Code 5257 is not
predicated on loss of range of motion, §§ 4.40 and 4.45 with
respect to pain do not apply. Johnson v. Brown, 9 Vet.
App. 7, 11 (1996).
The General Counsel for VA, in a precedent opinion dated July
1, 1997, (VAOPGCPREC 23-97) held that a claimant who has
arthritis and instability of the knee may be rated separately
under Diagnostic Codes 5003 and 5257. When the knee disorder
is already rated under Diagnostic Code 5257, the veteran must
also have limitation of motion which at least meets the
criteria for a zero-percent rating under Diagnostic Code 5260
(flexion limited to 60 degrees or less) or 5261 (extension
limited to 5 degrees or more) in order to obtain a separate
rating for arthritis. If the veteran does not at least meet
the criteria for a zero percent rating under either of those
codes, there is no additional disability for which a rating
may be assigned. The General Counsel in VAOPGCPREC 9-98 held
that a separate rating for arthritis could also be based on
x-ray findings and painful motion under 38 C.F.R. § 4.59.
See also Degmetich v. Brown, 104 F. 3d 1328, 1331 (Fed Cir
1997). Where additional disability is shown, a veteran rated
under Diagnostic Code 5257 can also be compensated under 5003
and vice versa.
Traumatic arthritis established by x-ray findings will be
rated on the basis of degenerative arthritis which in turn is
rated as limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
When however, the limitation of motion of the specific joint
or joints involved is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent is for application
for each joint or group of minor joints affected by
limitation of motion, to be combined, not added under
Diagnostic Code 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. In the
absence of limitation of motion rate as below: with x-ray
evidence of involvement of 2 or more major joints or 2 or
more minor joint groups, with occasional incapacitating
exacerbations a 20 percent evaluation is assigned. With x-
rays evidence of involvement of 2 or more major joints or 2
or more minor joint groups a 10 percent evaluation is
assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010
(2001).
Under Diagnostic Code 5260, a noncompensable (zero percent)
disability evaluation is assigned where there is limitation
of leg flexion to 60 degrees. A 10 percent disability
evaluation is awarded where there is limitation of leg
flexion to 45 degrees. A 20 percent disability evaluation is
in order with limitation of leg flexion to 30 degrees. And,
a 30 percent disability evaluation is appropriate with
limitation of leg flexion to 15 degrees. See 38 C.F.R. §
4.71a, Diagnostic Code 5260 (2001).
Under Diagnostic Code 5261, a noncompensable (zero percent)
disability evaluation is assigned where there is limitation
of leg extension to 5 degrees. A 10 percent disability
evaluation requires limitation of leg extension to 10
degrees. A 20 percent disability evaluation is appropriate
with limitation of leg extension to 15 degrees. A 30 percent
disability evaluation is in order where there is limitation
of leg extension to 20 degrees. A 40 percent disability
evaluation is assigned where there is limitation of leg
extension to 30 degrees. And, a 50 percent evaluation is
assigned where there is limitation of leg extension to 45
degrees. See 38 C.F.R.
§ 4.71a, DC 5261 (2001).
Upon a review of the evidence, the Board notes that as of
August 4, 1999, but prior to April 1, 2001, the veteran's
right knee presented objective evidence of painful motion,
instability and some guarding on movement. Although in
December 2000 he underwent right knee revision of the right
ACL reconstruction using an allograft of bone-patella-tendon-
bone and debridement of the medial meniscus; a month later
(per January 2001 VAMC notations) he had a right knee range
of motion of 5 to 130 degrees with no appreciable effusion,
excellent patellar mobility and "rock solid" Lachman
without any shift, although with anterior drawer slightly lax
with a 3 millimeter of more anterior shift than the
contralateral side.
In considering whether the veteran's right knee disability
warrants an evaluation in excess of 20 percent under the
provisions of Diagnostic Code 5257, the Board notes that the
evidence shows the veteran's right knee is deemed to have
only slight laxity (per the January 2001 VAMC notations). As
such, the Board finds that the preponderance of the evidence
is against the assignment of a disability evaluation in
excess of 20 percent for a right knee disability, under
Diagnostic Code 5257, effective as of August 4, 1999, but
prior to April 1, 2001. The veteran's claim is therefore
denied. See 38 C.F.R. § 4.71a, DC 5257 (2001).
The Board has also considered whether the veteran's right
knee disability should be rated under another diagnostic code
that could result in a rating higher than 20 percent. As of
August 4, 1999, but prior to April 1, 2001, the veteran's
right knee range of motion was from 0-5 degrees of extension
to 108-130 degrees of flexion. However, Diagnostic Code 5260
contemplates a 30 percent disability evaluation, which is the
maximum allowed under this rating, where there is limitation
of knee flexion to 15 degrees. As such, an increased
disability evaluation in excess of 20 percent cannot be
assigned under Diagnostic Code 5260. See 38 C.F.R. § 4.71a,
Diagnostic Code 5260 (2001). Further, although Diagnostic
Code 5261 allows for the assignment of an increased
evaluation in excess of 20 percent, the evidence does not
show that the veteran has limitation of right knee extension
to 20 degrees. As such, the preponderance of the evidence is
against the assignment of an increased disability evaluation
in excess of 20 percent for the veteran's right knee
disability under Diagnostic Code 5261. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5261 (2001). In addition, the Board
has also considered the provisions of 38 C.F.R. §§ 4.40,
4.45, and 4.59. However, while the Board does not doubt the
presence of pain in the veteran's right knee, including pain
on motion, the Board finds the objective evidence of record
does not show that, on the occasions where the veteran has
presented to medical examiners with complaints of significant
pain, the limitation of motion approaches that required by
either Diagnostic Code 5160 or Diagnostic Code 5261 for a
higher evaluation.
The Board has considered the provisions of Diagnostic Code
5256 which contemplates ankylosis of the knee. However, as
the veteran's right knee disability is not characterized by
ankylosis, a rating in excess of 30 percent is not warranted
under DC 5256. See 38 C.F.R. § 4.71a, Diagnostic Code 5256
(2001); Butts v. Brown, 5 Vet. App. 532 (1993).
Finally, the Board has considered whether the veteran's right
knee disorder should be assigned a rating for arthritis
separate from the 20 percent rating assigned under Diagnostic
Code 5257. Based on a review of the record, the Board finds
that a separate 10 percent rating for the veteran's right
knee arthritis under Diagnostic Code 5010 is appropriate in
this case. In this regard, the medical records contain x-ray
and MRI evidence showing the veteran's right knee has
degenerative arthritis. There is also credible evidence of
limited and/or sometimes painful motion of the right knee.
As such, the Board finds that the preponderance of the
evidence supports the award of a separate 10 percent rating
for the veteran's right knee disability under Diagnostic Code
5010, taking into account the previously discussed VA General
Counsel opinions. See VAOPGCPREC 23-97; VAOPGCPREC 9-98.
III. Conclusion.
The potential application of various provisions of Title 38
of the Code of Federal Regulations (2001) have been
considered whether or not they were raised by the veteran as
required by the Court's holding in Schafrath v. Derwinski,
1 Vet. App. 589, 593 (1991). The Board has considered
whether an extra-schedular evaluation pursuant to the
provisions of 38 C.F.R. § 3.321(b)(1) (2001) is warranted.
In the instant case, however, there has been no showing that
the right knee disability alone, for the periods discussed
above, has caused marked interference with employment (i.e.,
beyond that contemplated in the currently assigned
evaluations), necessitated frequent periods of
hospitalization, or otherwise renders impracticable the
application of the regular schedular standards.
Although the veteran asserted during the November 2000 RO
hearing that his right knee gives out and buckles, and is
constantly painful causing him to work in pain on a daily
basis, he also indicated that is currently employed at a
factory. The Board acknowledges that the right knee
disability causes some interference with the veteran's daily
life and employment. However, the evidence simply does not
show that the veteran's right knee disability has caused
marked interference with employment (i.e., beyond that
contemplated in the currently assigned evaluations).
Additionally, the Board acknowledges the veteran has
undergone at least three surgeries for his right knee
disability since 1991. However, the frequency of such
hospitalizations do not rise to the level necessary to render
impracticable the application of the regular schedular
standards.
To the extent that the veteran may experience functional
impairment due to the service-connected disability addressed
here, the Board finds that such impairment is contemplated in
the currently assigned ratings. In essence, the Board finds
no evidence of an exceptional or unusual disability picture
in this case which renders impracticable the application of
the regular schedular standards.
In that regard, the Board observes that with respect to the
disability at issue, the applicable rating criteria
contemplates higher ratings. However, the Board has not
found the disability under consideration to be of such
severity as to warrant assignment of a higher rating on a
schedular basis than that indicated above. Likewise then,
referral for consideration for extra-schedular evaluations is
not warranted here. See Bagwell v. Brown, 9 Vet. App. 237,
239 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
A timely substantive appeal not having been filed, the
veteran's appeal on the issues of entitlement to service
connection for sinus condition, headaches, hair loss, low
blood count, and fatigue is dismissed.
An evaluation in excess of 10 percent for a right knee
disability effective prior to August 4, 1999 is denied.
An evaluation in excess of 20 percent for a right knee
disability effective as of August 4, 1999, but prior to April
1, 2001 is denied.
A separate 10 percent disability evaluation for right knee
arthritis effective as of August 4, 1999, but prior to April
1, 2001 is granted, subject to the laws and regulations
governing the payment of monetary benefits.
A. BRYANT
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.